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Lawyer: 9th Circuit panel biased in same-sex marriage decision

A lawyer who argued against same-sex marriage before the 9th U.S. Circuit Court of Appeals is charging that the three-person federal panel was stacked with judges favorable to same-sex marriage rather than chosen through a neutral process.

Monte Neil Stewart represented both Idaho and Nevada in oral arguments before the court.

“We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious,” Stewart wrote in legal filings with the 9th Circuit, requesting a full 11-judge review of Nevada’s case. “But the sensitivity of raising uncomfortable questions for this circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State.”

Stewart was Gov. Butch Otter’s attorney for Idaho’s unsuccessful appeal to the 9th Circuit, after a U.S. magistrate judge overturned Idaho’s ban on same-sex marriage in May. In his most recent legal filings in Idaho’s case, Otter replaced Stewart with Washington, D.C., attorney Gene Schaerr.

Otter’s office would not say Tuesday if Stewart still represents Idaho or the governor in any capacity.

Otter spokesman Mark Warbis also declined to comment on whether the governor supports Stewart’s bias claim. Same-sex marriage becomes officially legal in Idaho at 9 a.m. today.

The same three-judge panel heard same-sex marriage cases from Idaho, Nevada and Hawaii and found that bans on same-sex marriage violate the equal protection requirements of the U.S. Constitution.

Stewart contended that a statistical analysis shows it is highly unlikely that 9th Circuit Judges Stephen Reinhardt and Marsha Berzon would be selected to hear Nevada’s case after also sitting on multiple other cases dealing with gay rights in the past five years.

“Sophisticated statistical analysis validates the reasonable person’s sense that something is amiss,” Stewart wrote. “Judges Reinhardt and Berzon are publicly perceived to be favorably disposed to arguments for expanding the rights of gay men and lesbians, more so than all or nearly all other judges in this circuit. That perception gives rise to an appearance of an uneven playing field.”

Carl Tobias, a law professor at the University of Richmond in Richmond, Virginia, who has closely followed same-sex marriage cases around the country, said bias in the judicial selection is unlikely.

“The three-judge panels are randomly drawn,” Tobias said. “It is virtually unheard of that the people in charge of the process would game the system. My whole sense of the federal appeals courts is that the judges are too professional to allow that to happen.”

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